STATE OF MAHARASHTRA Vs. SHAIKH SULTAN SHAIKH NIZAM

JUDGEMENT

(1.) With the consent of learned Counsel for the parties this Criminal Revision Application is heard finally at this stage. Criminal Revision Application No. 44 of 2011 has been filed by the State challenging the order passed by the Sessions Judge, Nanded, dated 11.1.2011, at Exh. 80 in Sessions Case No. 19 of 2010, declining to examine the child witness Onkar s/o Shrikant Bandewar, who was a victim who had been kidnapped, on the ground that upon orally questioning the witness, the Trial Judge came to the conclusion that it was not just and proper to record the evidence of the witness as the witness was incompetent witness being a child of tender age.

(2.) The learned A.P.P. in support of this Criminal Revision Application has urged before me that the child witness Onkar was aged about 6 years at the time of the incident and was about 7 to 8 years at the time when an application was moved by the prosecution seeking permission of the Court to examine him as a witness. The grievance of the learned A.P.P. is that the Trial Judge had not prepared a contemporaneous record of the questions which were put to the witness and the answers given by the witness. Shri Girase, learned Counsel for the respondent/accused has urged before me for dismissal of this Criminal Revision Application on the ground that the finding of the Trial Court is that the child witness was an incompetent witness and, therefore, no useful purpose would be served in permitting the examination of the child witness.

(3.) Undisputedly, the child witness Onkar s/o Shrikant Bandewar was a victim, who had been kidnapped and in respect of whose kidnapping the accused was facing the charge. This child witness had not been cited as a prosecution witness and, therefore, an application had been moved by the prosecution seeking permission of the Court to examine him as a witness. The Trial Judge permitted the prosecution to examine the child as a witness. However, the Trial Judge declined to record the evidence of this witness on the ground that upon orally questioning the child witness he did not find the child witness to be a competent witness. Undisputedly, no contemporaneous record is available in respect of the questions which were posed by the Trial Judge and the answers given by the child witness. In the absence of such contemporaneous record, it is difficult for this Revisional Court to determine if on the basis of the answers given by the child, the child witness is indeed not a competent witness as the child did not understand the questions and could not rationally reply the same. According to me, it would be appropriate to remit the matter back to the Trial Judge with a direction for recording the evidence of the child witness, subject to the Trial Judge putting preliminary questions for ascertaining the competency of the witness. The questions put by the Trial Judge as well as the answers given by the witness should be recorded and thereafter the Trial Judge should form an opinion and proceed further in accordance with law. Resultantly, this Criminal Revision Application is allowed and the order passed by the Trial Judge, dated 11.1.2011, is hereby quashed and set aside and the matter is remitted back to the Trial Court, with a direction that the Trial Court shall examine the child witness Onkar Shrikant Bandewar by initially putting preliminary questions and maintaining a contemporaneous record of the questions which were put and the answers given by the child witness and thereafter the Tial Judge shall determine if the witness is competent and fit to be examined as a witness and thereafter proceed further in accordance with law. Since the trial has been stayed and is pending since 2011, it is expected that the Trial Court shall expeditiously decide the said trial in accordance with law.